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Thomson v Brisbane City Council QIRC 429
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Thomson v Brisbane City Council  QIRC 429
Thomson, Aaron Lee
Brisbane City Council
Application for reinstatement
DELIVERED EX TEMPORE ON:
13 December 2021
9 December 2021
Pursuant to section 321 of the Industrial Relations Act 2016 (Qld), I order that within 21 days of this decision:
INDUSTRIAL RELATIONS – APPLICATION FOR REINSTATEMENT – unfair dismissal – safety breach – line marker and traffic controller operating heavy machinery – positive alcohol reading – zero alcohol limit – severity of breach – employee showing remorse and admitting guilt – 25 years service with employer – unconditional apology – demonstrated insight into conduct – dismissal harsh, unjust and unreasonable – reinstatement ordered – no order for compensation – order that continuity of service be maintained
City of Brisbane Regulation 2012 (Qld) s 258
Industrial Relations Act 2011 (Qld) s 316, 317, 320, 321
Barsha v Motor Finance Wizard (Sales) Pty Ltd (2002) 171 QGIG 139
Bostik (Aust) Pty Ltd v Georgevski (No 1) (1992) 36 FCR 20
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Farquharson v Queensland Racing Integrity Commission  QIRC 1
Perkins v Grace Worldwide (Aust) Pty Ltd  IRCA 15, (1997) 72 IR 186
Robinson v Woolworths Limited  FWA 1179
Reasons for Decision
Delivered ex tempore on 13 December 2021
- At the outset of these proceedings, it was established that the material facts relevant to the application were almost entirely uncontroversial. Consequently, the evidence in the proceedings was provided exclusively by way of affidavits, and the parties provided both written outlines of argument and oral submissions.
- At the time of his dismissal, Mr Aaron Thomson had been employed with the Brisbane City Council ('the BCC') for 25 years. His first two years were not full-time but by 4 April 1998 he was employed full-time and remained so until his termination in April 2021.
- In the entire 25 years of his employment, Mr Thomson was not subject to any disciplinary process or performance management. It would appear that Mr Thomson had an exemplary work history.
- At the time of his dismissal, Mr Thomson was employed as a building and trades person in the 'Road Marking, Asphalt and Aggregates' team based at Stafford. The work routinely performed by Mr Thomson included painting line and sign markings on roadways which necessarily involved working in proximity to traffic. Another aspect of Mr Thomson's duties included occasional traffic control on these worksites.
- Mr Thomson was subject to the 'Managing Drugs and Alcohol in the workplace' policy ('the policy') implemented by the respondent some years earlier. In the policy, Mr Thomson was regarded as a 'specified category worker' and was required to have a blood alcohol level of 0.00% at all times when working.
- There is no dispute that Mr Thomson received training on the policy. While it appears from his evidence that he had only a rudimentary understanding of the policy, he clearly understood that he was required to have a blood alcohol reading of 0.00% when working.
- On the evening of 15 December 2020, whilst off duty, Mr Thomson was at home watching a cricket match on television. While he watched the cricket match, he was consuming cans of beer. To add to the thrill that is televised cricket, Mr Thomson had placed a bet on the outcome of the game and, as the evening progressed, it became increasingly apparent that he was about to win $300. Consequently, Mr Thomson became excited and subsequently, by his own admission, he overindulged in alcohol consumption that evening.
- Mr Thomson estimates that he drank approximately eight to nine cans of Tooheys New beer between 6 and 10pm that evening. The uncontested evidence of Mr Thomson is that he would not normally drink that much but that he was relaxed and excited on this particular evening for the reasons mentioned above. Mr Thomson states that he ceased drinking at 10 pm that evening.
- The following morning, Mr Thomson reported for work at 7am.
- Upon arriving at work on 16 December 2020, Mr Thomson was selected for random drug and alcohol screening. It is common ground that Mr Thomson then proceeded to produce positive readings for alcohol in the amounts of 0.026% and then, 20 minutes later, 0.016%. Mr Thomson initially thought, in response to the first reading that the result must have been a mistake, but he subsequently accepted that the results were accurate.
- The affidavit of Mr Thomson does not directly address the question of how he felt when he presented for work, or whether he turned his mind to whether he might have a blood alcohol reading of greater than 0.00%. However, Exhibit 'ALT01' to the affidavit of Mr Thomson (which is also referred to by the respondent's witnesses) is a copy of the show cause letter that was issued to Mr Thomson in March 2021.
- The show cause letter contains a summary of relevant facts gathered by the BCC in the aftermath of the events giving rise to Mr Thomson’s dismissal. The show cause letter includes a statement (or a reference to a statement) attributed to Mr Thomson that was made to his supervisor, Mr Bird. The statement is to the effect that, while he had consumed eight to nine beers the night before, he thought he would be clear by morning.
- Following the positive readings, Mr Thomson was stood down for 24 hours. He returned to work as normal the following day.
- Following various short periods of leave over Christmas and through January 2021, Mr Thomson was then subject to the following process:
- a meeting took place in mid to late February 2021 with some local managers about his positive reading;
- a show cause meeting took place on 3 March 2021, during which Mr Thomson received the show cause letter that is Exhibit ALT01 to his affidavit;
- on 10 March 2021, Mr Thomson provided a written response to the show cause letter (Exhibit ALT02); and
- on 29 April 2021, a meeting was held where Mr Thomson was advised of the termination of his employment.
- Mr Thomson contends that his dismissal in these circumstances is unfair and now makes this application pursuant to section 317 of the Industrial Relations Act 2016 (Qld) ('the Act').
Relevant provisions of the Act
- The Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable. These words have been the subject of lengthy judicial consideration over many years in various contexts. They are regarded as ordinary, non-technical words. A dismissal may be harsh because the consequences on the employee are disproportionate to the gravity of the conduct. A dismissal may be unjust because the conduct alleged was unproven. A dismissal may be unreasonable because it is decided on inferences that were not open to the decisionmaker.
- A court must objectively decide if dismissal was harsh, unjust or unreasonable having regard to the circumstances leading to the decision to dismiss and the effect of the decision on the employee. A harsh effect alone on an employee is not, of itself, conclusive. A decision must be balanced against the gravity of the employee's misconduct.
- Section 320 of the Act compels me to have regard to certain matters in considering whether the dismissal was harsh, unjust or unreasonable.
- Section 320 of the Act provides as follows:
320 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider—
- (a)whether the employee was notified of the reason for dismissal; and
- (b)whether the dismissal related to—
- (i)the operational requirements of the employer's undertaking, establishment or service; or
- (ii)the employee's conduct, capacity or performance; and
- (c)if the dismissal relates to the employee's conduct, capacity or performance—
- (i)whether the employee had been warned about the conduct, capacity or performance; or
- (ii)whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
- (d)any other matters the commission considers relevant.
- To the extent s 320(a), (b) and (c) apply, I conclude (without the need for further consideration) that Mr Thomson was adequately notified of the reason for his dismissal and that he was given an opportunity to respond to the allegation.
- There is some conjecture between the parties as to whether Mr Thomson's conduct was properly characterised as 'misconduct' or as 'serious misconduct'. For the reasons that follow, I do not consider that it makes any difference in Mr Thomson's case as to how his conduct was characterised. I note that Mr Thomson received notice on termination which is consistent with misconduct (as opposed to serious misconduct), but I otherwise do not consider that the lack of clarity around this characterisation gives rise to any unfairness to Mr Thomson.
- Section 320(d) broadens the scope of matters that I may consider to include 'any other matters' that I consider relevant.
- In this matter, it is relevant that Mr Thomson was a long-standing employee with an exemplary employment history who engaged in conduct in breach of the policy. That conduct could have endangered his life and the lives of others. It is equally relevant that Mr Thomson gave a full and unconditional apology for his conduct and demonstrated insight into it.
- I consider that the factual circumstances leading to Mr Thomson's dismissal give rise to an extraordinarily close contest on the overall question of fairness. The very helpful submissions by both parties in these proceedings, both written and oral, have each made compelling points in support of their respective positions.
Submissions of the parties
- In respect of the respondent's submissions, they unsurprisingly rely on the elaborate framework of Workplace Health and Safety and other statutory regulations that underpin the policy that applied to Mr Thomson during his employment.
- Mr Thomson was trained in the procedure and had a clear understanding, not just that he was required to have a blood alcohol reading of 0.00%, but also why he was required to have a blood alcohol reading at this level. In his response to the show cause process, Mr Thomson said in his response letter:
I understand that by coming to work with a blood alcohol reading of any type jeopardises the safety of my workmates and the general public.
- The respondent was at pains to impress upon the Commission that there would be a range of significant consequences in the event that an injury or death was caused to any person by the action of a worker found to have a blood alcohol level greater than zero percent. The respondent took the view that the objective gravity of the conduct of Mr Thomson outweighed the mitigating factors, namely, his 25 years unblemished service and his unconditional apology for his conduct.
- The respondent submitted that because Mr Thomson was a longstanding employee, he ought to have set a better example and further, because he offered no excuse for his actions, his unconditional apology in those circumstances made his conduct more serious.
- The respondent submitted that a firm and decisive approach was justified given the responsibility it has to ensuring compliance from its workers to comply with safety policies and procedures. The suggestion was that Mr Thomson should serve as an example of the consequences for breaching safety protocols.
- Submissions made on behalf of Mr Thomson extended across a number of different grounds. To the extent that the Mr Thomson's submissions assert failures in procedure in the lead up to the determination, I do not intend to summarise those submissions in these reasons. Similarly, I do not intend to deal with the submission regarding the fact that Mr Thomson remained at work between December 2020 and April 2021 after the misconduct was identified. I do not intend to summarise these submissions in these reasons because I do not consider that these matters have played any role in rendering the dismissal unfair in all of the circumstances of this case.
- Further, by mounting arguments on multiple alternative grounds, the submissions on behalf of Mr Thomson almost obscure the two very simple (but no less compelling) facts in support of the submission of unfairness namely, that in mitigation of his conduct, proper regard should be had to Mr Thomson's 25 years unblemished employment history and also his demonstrated contrition and insight.
Consideration of dismissal
- The first matter for me to consider in the context of these submissions is the nature of the conduct engaged in by Mr Thomson. The conduct leading to Mr Thomson's termination was wholly admitted. Howsoever it might be characterised (as either misconduct or serious misconduct) it does not influence my conclusions about the harshness or otherwise of the termination.
- I do not consider that Mr Thomson's actions in attending for work that morning could properly be described as wilful or deliberate in the sense that he knew he would produce something other than a 0.00% blood alcohol level reading.
- It is fair to say that Mr Thomson was entirely conscious that he drank excessively the evening before. He uses these exact words in his apology. The common experience of any adult familiar with the effects of alcohol is that there is often alcohol present in one's system the next day. I consider that Mr Thomson ought to have been conscious that there was at least some risk that he was more than 0.00% when he presented for work. However, I equally consider that (as he told Mr Bird) he thought he would be clear and that this probably influenced his evaluation of the risk.
- As Dr O'Toole's evidence broadly confirms, the science around the rate of alcohol absorption is often imprecise and subject to numerous variables. Similarly, it is the common experience that an individual's personal evaluation of their own blood alcohol level is often fraught with imprecision and misleading indicators.
- The real offending conduct of Mr Thomson is not that he presented when he knew that his blood alcohol level was 0.026%, but that he presented in circumstances where he ought to have appreciated there was a risk he would produce a non-negative result. He should have exercised better judgement and insight.
- On the whole, I consider that Mr Thomson's conduct ultimately amounts to a serious error of judgement on his part and an error that should have (and could have) been avoided had he had proper regard to his obligations with respect to the policy.
- There can be no question that Mr Thomson's conduct put himself and others at risk. It is wholly irrelevant that the reading was within the lawful limits for e.g. driving a motor vehicle outside of the context of his employment. It is irrelevant that no harm actually arose from his actions.
- To the extent that it needs to be reiterated it should be said clearly that any employee who engages in conduct that gives rise to a risk of injury or death to themselves or others ought to expect that, in all but the most exceptional circumstances, their conduct will likely warrant the termination of their employment.
- As I observed above, the facts of this particular matter present a unique and finely balanced contest. On the one hand, the admitted conduct of Mr Thomson could have grave consequences for him and for others, including members of the public. On the other hand, he has been an exemplary employee for 25 years.
- In addition to Mr Thomson's lengthy and unblemished work history, his response to the show cause process was more than a just and unconditional apology. His response demonstrated significant insight into the reasons why his conduct was wrong and included what I regarded to be a sincere expression of deeply felt remorse.
- It was said by the respondent in submissions that the lack of excuse offered by Mr Thomson somehow made his conduct more serious. It seems that having regard to the evidence of Mr Anderson and the written submissions filed on behalf of the Respondent that the lack of excuse was construed as, to use the words in the submissions, evidence of a 'cavalier' attitude to safety. I disagree.
- In the full context of the response to the show cause process where Mr Thomson says 'there were no excuses' for his conduct it is clearly an unconditional acknowledgement of his mistake. It is an expression consistent with insight into his error in judgement by getting carried away the night before, and an understanding of the serious consequences that were now likely to arise as a result of that conduct.
- Both Mr Anderson (and then Mr Herbert of Counsel on behalf of the respondent) felt the lack of excuse was something of an aggravating factor. In interpreting Mr Thomson's response in this fashion, I consider that there was a failure to give proper regard to the compelling nature of Mr Thomson's sincere, insightful and unconditional apology.
- While Mr Anderson's affidavit does indicate that he had regard to the show cause response and also to Mr Thomson's long tenure with the BCC, his evidence does not give me the impression that he gave proper weight to those factors. Indeed, these matters are scarcely mentioned throughout his affidavit.
- There can be no doubt that Mr Anderson's assessment of the seriousness of the safety contraventions is accurate. Further, as someone who might be personally held to account over such contraventions, I have no doubt that Mr Anderson was keenly focused on firm and decisive action. But ultimately, having regard to his evidence and to the facts in this matter, I consider that the compelling mitigating factors were not given their proper weight.
- Further, the City of Brisbane Regulation 2012 (Qld) at s 258 sets out the disciplinary action available to Mr Anderson to have taken against Mr Thomson. Mr Anderson gives no evidence of considering any alternatives.
- Finally, I note that Mr Anderson never met with Mr Thomson prior to deciding to terminate his employment. Whilst I acknowledge that in large organisations it is not unusual for persons in Mr Anderson's position to simply make their decision based on investigations undertaken by others, given the plea for forgiveness in the show cause response and Mr Thomson's unblemished and lengthy work history, it strikes me as harsh that Mr Anderson only presented when the time came to dismiss Mr Thomson. Given the significant loss about to be inflicted on Mr Thomson, the failure by Mr Anderson to give him an opportunity to personally plead his case to the decision maker dilutes the procedural fairness.
- There can be no question that the impact of the dismissal on Mr Thomson's lifestyle has been significant as set out in his affidavit. In my view, the unblemished 25-year work history and the unconditional, insightful and sincere apology were compelling factors. In my view, they are sufficiently compelling to mitigate the seriousness of the conduct engaged in by Mr Thomson, at least insofar as termination was warranted.
- For these reasons, I consider that the decision to dismiss Mr Thomson was harsh and, it follows, unfair.
- On the question of remedy, the evidence is that since the termination of his employment in April, Mr Thomson has been unable to find alternative employment. He has no current qualifications or experience other than the skills specific to his work with the Brisbane City Council over the last 25 years. Unsurprisingly, Mr Thomson seeks reinstatement or reemployment.
Reinstatement or reemployment
- The respondent submits that reinstatement or reemployment are not practical because the relationship of trust between the parties has broken down. The only evidence to this effect is from Mr Anderson. His assertions are not supported by any evidence from the BCC and, as the decisionmaker, it is unsurprising that Mr Anderson takes that view.
- I accept that Mr Anderson does not trust Mr Thomson, but Mr Anderson is not the employer. Moreover, there are a number of conclusions reached by Mr Anderson, set out in his affidavit which, in my view, overstate the true character of Mr Thomson's conduct and are not fair conclusions on the facts.
- By way of example, at paragraph 31, Mr Anderson says:
In this case, I was extremely concerned that Mr Thomson thought he was entitled to arrive at a worksite and prepare to commence work in knowledge of his legal duties and safety obligations when, by his admission, he engaged in what he described in his response as excessive drinking.
- Mr Thomson did not think that he was entitled to arrive at work in an unfit state. On the contrary, he has consistently expressed insight into the need to be 0.00% when he presents for work.
- At paragraph 42, Mr Anderson says:
On the 15th or 16th of December 2020, Mr Thomson did not make any such disclosure to Council despite significant indications of which he was very aware that he was possibly unfit for work in accordance with the MDA procedure.
- There is no evidence at all that there were 'significant' (or any) indications of Mr Thomson being unfit, nor is there evidence that he was 'very aware' that he was unfit.
- At paragraph 43, Mr Anderson says:
I believe that Mr Thomson had every intention of commencing to undertake his duties in breach of his statutory obligations.
- Again, there is no evidence of an intention on the part of Mr Thomson and that conclusion, in my view, is not open to Mr Anderson. Certainly, Mr Thomson ought to have been aware of a risk, but there has never been any evidence that he presented with the intention of working in breach of the policy.
- At paragraph 58, quite unusually, Mr Anderson says:
Mr Thomson's flippant disregard to his own state of alcohol concentration after excessive drinking left me with a reasonable inference that either he has engaged in such behaviour before or may have engaged in such behaviour in the future.
- The term 'flippant disregard' is an overly inaccurate and unfair description of Mr Thomson’s mindset on the morning in question.
- Further, there is no reasonable inference that can be drawn from the facts that Mr Thomson had engaged in such behaviour before. Despite somewhat desperate (but illogical) submissions made at the hearing, the fact that Mr Thomson did not expressly disavow having excessively consumed alcohol on any other evening before work at any other point in the past cannot lead to an inference that he has. The conclusion is entirely unreasonable, especially when it appears such inference is relied on to support a decision to terminate employment after 25 years.
- All of Mr Anderson’s conclusions in this regard were inaccurate and unfair to Mr Thomson. To the extent that Mr Anderson considers there are ongoing issues of trust with Mr Thomson, he may care to revisit these conclusions that he has reached and the lack of evidence to support them.
- To the extent that the trust and confidence may have been lost between Mr Thomson and his employer, the BCC, I note that there is no other evidence (other than from Mr Anderson) as to how this trust is lost.
- I note the comments of the Full Court of the Industrial Relations Court in the decision of Perkins v Grace Worldwide (Aust) Pty Ltd in which the court said:
Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability….but those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in an employment relationship is that there be sufficient trust to make the relationship viable and productive.
- Mr Thomson worked for 25 incident-free years with the Brisbane City Council. His conduct that led to his dismissal, while serious, is something of an aberration and not sufficient to undermine the essential trust necessary to resume the employment relationship, especially in the context of his expressed remorse and demonstrated insight. Further, I see no reason why Mr Thomson should not be reinstated to his former position.
- I do not propose to order compensation. As I have already indicated, Mr Thomson's conduct was a serious contravention of the requirement that he have a 0.00% blood alcohol reading when working. While I accept that the circumstances of his excessive drinking were unusual, as a middle-aged person experienced in the consumption of alcohol, he should have known better, and he should have exercised better judgement.
- Given that Mr Thomson has brought the hardships of his dismissal upon himself to a large degree, I consider that he should not be compensated in the circumstances.
- Further, while it does not fall to me to impose any alternative sanction on Mr Thomson, I would not consider it unreasonable or unfair if the BCC were to immediately issue Mr Thomson with a first and final warning in relation to his conduct upon his return.
- Finally, I note that the Respondent expressed concern that any favourable outcome in these proceedings for Mr Thomson would send the wrong message to its employees about the importance of adhering to safety procedures. So there is no misunderstanding, let me be clear in saying that this outcome for Mr Thomson is a reflection of the unique circumstances of this particular case. No employee should look to this decision as an excuse to engage in conduct that endangers safety.
- Further, any employee who does so engage in such conduct ought to expect that their employment will be terminated.
- In the circumstances I make the following orders:
Pursuant to section 321 of the Industrial Relations Act 2016 (Qld), I order that within 21 days of this decision:
- That the respondent will reinstate Mr Thomson to his former position on conditions at least as favourable as the conditions on which he was employed immediately before his dismissal; and
- Mr Thomson's continuity of employment be maintained for all purposes from the date of dismissal.
 While I note that no evidence was lead from Mr Bird on this issue, I note also that both Mr Thomson and the respondent’s (who drafted the letter) have both referred to it in their evidence and have not taken issue with this passage. I consider in the circumstances that the normal rules of evidence ought not to be applied, and I am prepared to accept the conversation with Mr Bird as described as part of the factual matrix.
 Industrial Relations Act 2016 (Qld) s 316.
 Barsha v Motor Finance Wizard (Sales) Pty Ltd (2002) 171 QGIG 139; See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410 .
 Bostik (Aust) Pty Ltd v Georgevski (No 1) (1992) 36 FCR 20 .
 Robinson v Woolworths Limited  FWA 1179 at -
  IRCA 15, (1997) 72 IR 186; See also Farquharson v Queensland Racing Integrity Commission  QIRC 1 -.
- Published Case Name:
Thomson v Brisbane City Council
- Shortened Case Name:
Thomson v Brisbane City Council
 QIRC 429
13 Dec 2021